CHAPTER 5
CHRONIC NUISANCE PROPERTIES
SECTION:
5-5-4 Chronic Nuisance Property; Procedure
5-5-5 Commencement Of Abatement Action; Chronic Nuisance; Enforcement
5-5-6 Civil Penalties; Chronic Nuisance
5-5-1 PURPOSE AND INTENT:
A. It is the purpose and intent of this chapter to provide for the protection of the health, safety, and general welfare of the citizens of the city of Roy by proscribing chronic nuisances and establishing a procedure for the abatement of chronic nuisances where efforts to achieve voluntary compliance have failed. The remedy provided in this chapter shall be in addition to, and not in lieu of, other civil or criminal remedies provided by state law and/or the city of Roy code.
B. The city of Roy is committed to protecting its citizens from the dangers of properties that are abandoned, where unsafe conditions exist, or where crime repeatedly occurs. Such properties are known as "nuisance properties" because of their adverse impact on the quality of life of the city’s citizens. Additionally, when owners, financial institutions and persons in charge fail to take responsible action to secure and care for these properties, they deteriorate and become "chronic nuisance" properties. Chronic nuisance properties create a substantial financial burden, pose a significant strain on city services, interfere with other’s use and enjoyment of their lands, and are a prohibited public nuisance. Persons in charge of such properties have a duty to take all reasonable measures to prevent and abate nuisance activity. It is the purpose of this chapter to hold legally and financially accountable the owners and persons in charge of nuisance and chronic nuisance properties, and to provide for the restoration and abatement of such properties. (Ord. 985, 1-27-2020)
5-5-2 ENFORCEMENT AUTHORITY:
The city of Roy executive or designees, the prosecuting attorney and any law enforcement officer are authorized to enforce this chapter. (Ord. 985, 1-27-2020)
5-5-3 DEFINITIONS:
"Abandoned property," for purposes of defining a chronic nuisance, means a property over which the person in charge no longer asserts control due to death, incarceration, or any other reason, and which is either unsecured or subject to occupation by unauthorized individuals.
"Abate" means to act to stop an activity and/or to repair, replace, remove, or otherwise remedy a condition where such activity or condition constitutes a violation of this chapter.
"Abatement agreement" means a contract between the city and the person in charge of the chronic nuisance property in which such person agrees to promptly take all lawful and reasonable actions, which shall be set forth in the agreement, to abate the nuisance within a specified time and according to specified conditions.
"Building" includes, but is not limited to, any structure or any separate part or portion thereof, whether permanent or not, or the ground itself.
"Chronic nuisance property" means:
1. A property on which nuisance activity is observed on three or more occasions during any one hundred twenty (120) day period or on which nuisance activity is observed on seven (7) or more occasions during any twelve (12) month period; or
2. A property where, pursuant to a valid search warrant, evidence of drug-related activity has been identified two (2) or more times within the previous two (2) years; or
3. Any abandoned property where nuisance activity exists.
"City" means city of Roy.
"Control" means the ability to regulate, restrain, dominate, counteract or govern property or conduct that occurs on a property.
"Drug-related activity" means any unlawful activity at a property which consists of the manufacture, delivery, sale, storage, possession, use, or giving away of any controlled substance as defined in chapter 69.50 RCW, legend drug as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW. The production, distribution, and possession of marijuana that is legal under state law shall not result in enforcement action under this chapter.
"General nuisance" means:
1. Any act or omission, including performing an unlawful act, or omitting to perform a duty, or permitting an action or condition to occur or exist as provided in chapter 7.48 or 9.66 RCW or which unreasonably:
a. Interferes with, endangers or injures the comfort, solitude, health or safety of others; or
b. Offends common sensibilities and senses by way of extreme noise, light or odor; or
c. Unlawfully interferes with, obstructs or tends to obstruct or renders dangerous for passage any lake, or navigable river, bay, stream, canal or basin, or any public property, open spaces, parks, or public right-of-way in the city; or
d. Obstructs or renders hazardous for public passage any public way or place; or
e. Pollutes or renders less usable any watercourse or water body; or
f. Renders other persons insecure in life or in the use of property; or
g. Creates, maintains, or permits the existence or continuance of any of the specific nuisances identified in this chapter.
"Hearing examiner" means a city of Roy hearing examiner or deputy hearing examiner.
"Landlord" means the landowner, lessor or sublessor of the dwelling unit or the property of which it is a part, and in addition, means any person designated as a representative of the landlord.
"Landowner" is broadly defined to include a person(s) who legally owns real property and/or the person(s) shown on the last equalized assessment roll as the taxpayer for real property and/or any person in possession or control of property including an occupant, a builder or business operator who is developing, building, or operating a business on the property, or a person who has responsibility for maintaining the property.
"Nuisance activity" means and includes:
1. Any general or specific nuisance.
2. Any civil code violation as defined by state law or local ordinance occurring around or near the property including, but not limited to, the following activities, conditions or behaviors:
a. Litter and rubbish;
b. Fire hazard from vegetation and debris;
c. Fire code violations:
3. Any criminal conduct, including the attempt and/or conspiracy to commit any criminal conduct, as defined by state or local ordinance occurring on, around, near or having a nexus to a property including, but not limited to:
a. Reckless endangerment: RCW 9A.36.050;
b. Prostitution: RCW 9A.88.030;
c. Patronizing a prostitute: RCW 9A.88.110;
d. Disorderly house, as defined by: RCW 9A.88.090;
e. Indecent exposure: RCW 9A.88.010;
f. Lewd conduct: RCW 7.48.050;
g. Any firearms or dangerous weapons violations listed in: chapter 9.41 RCW;
h. Noise: chapter 70.107 RCW; section 6-2-3;
i. Loitering for the purpose of engaging in drug-related activity: section 6-4-3;
j. Drug-related activity: chapter 69.50 RCW;
k. Gang-related activity: RCW 9.94A.030; RCW 9A.46.120;
l. Warrant arrests, or any instance in which a Department of Corrections (DOC) offender is located at a property while in violation of DOC supervision: chapter 10.31 RCW; RCW 10.88.370;
m. Possession of stolen property: RCW 9A.56.140 through 9A.56.170;
n. Trafficking in stolen property and/or criminal profiteering: chapter 9A.82 RCW;
o. Theft, trafficking, or unlawful possession of commercial metal property: chapter 19.290 RCW; and
p. Identity theft: RCW 9.35.020.
"Person" means a natural person, financial institution, bank, joint venture, partnership, association, club, company, corporation, business trust, or organization, or the manager, lessee, agent, officer, or employee of any of them.
"Person in charge" of a property means any person in actual or constructive possession or control of a property including, but not limited to, an owner, occupant, agent or property manager of a property under his control, and any bank or financial institution in actual or constructive possession or which possesses any sort of lien or interest in the property. There may be at any one time multiple persons in charge of a property all of which may be jointly and severally liable under this chapter.
"Premises and property" may be used by this chapter interchangeably and means any building, lot, parcel, dwelling, rental unit, real estate or land or portion thereof including property used for residential, commercial, or other purposes, and including abandoned or unused property.
"Public Official" means any person(s) designated by the city of Roy executive or the prosecuting attorney to carry out the purposes of this chapter, and any law enforcement officer.
"Rental unit" means any structure or that part of a structure including, but not limited to, single-family home, room or apartment, which is rented to another and used as a home, residence or sleeping place by one (1) or more persons.
"Solid waste" has the same meaning as in RCW 70.95.030(22).
"Specific nuisance" means:
1. The discharge of sewage, human excrement, or other wastes in any location or manner, except through approved means of sewage disposal which are constructed and maintained in accordance with the regulations of the Tacoma-Pierce County health department and/or the city of Roy public works department;
2. Any residence, business, or place where people congregate, reside, or work that does not have an adequate and lawful source of potable water as required by state or local regulations;
3. Any residence, business, or place where people congregate, reside, or work that is not serviced by a sewage disposal system constructed and maintained in accordance with the regulations of the Tacoma-Pierce County health department and/or the city of Roy planning and public works department;
4. Any poisonous material or poisonous thing on any property accessible to any animal or person;
5. Unsecured hazards accessible to and posing a danger to minor children, animals, and any person with, or regarded as having, a sensory, physical or mental impairment which substantially limits one or more major life activities, which include, but are not limited to: unused, abandoned, or discarded refrigerators, freezers or large appliances, or any unsecured or abandoned excavation, pit, mine, cistern, storage tank, or shaft;
6. Property where solid waste has accumulated or is handled, stored, treated, processed, or buried except for properly permitted solid waste handling sites or facilities that are operated and maintained in full compliance with the terms of any permit, license, statute, regulation, or ordinance regulating such activity and solid waste securely stored in receptacles or containers designed to prevent threats to human health or safety or to the environment until such solid waste enters a solid waste handling system;
7. Any building or structure where construction was commenced and then ceased and the building or structure was left unfinished, or any building or structure that has been constructed or modified without required permits;
8. Any property or vehicle that has been found contaminated and declared unfit for use by a local health officer pursuant to RCW 64.44.030; and
9. Property maintained in violation of the terms of a written order issued by the city of Roy planning and/or public works department, the Tacoma-Pierce County health department, or the city of Roy fire prevention bureau. (Ord. 985, 1-27-2020)
5-5-4 CHRONIC NUISANCE PROPERTY; PROCEDURE:
A. Chronic Nuisance Notice:
1. When documentation confirms a chronic nuisance property as defined by section 5-1-3, the public official or their designee shall notify a person in charge of the property in writing that the property is being declared a chronic nuisance property.
2. The notice shall indicate the following:
a. The street address or a legal description sufficient for identification of the property;
b. A concise description of the nuisance activities that have occurred on the property and whether the property is abandoned;
c. A warning that the person in charge of the property may be subject to penalties as set forth in this chapter;
d. A demand that the person in charge respond to the public official or their designee within ten (10) days of service of the chronic nuisance notice to discuss the nuisance activities and create a plan to abate the nuisance;
e. A statement that the person in charge shall have an opportunity to abate the nuisance; and
f. A warning that, if the person in charge does not respond as required, or if the matter is not voluntarily corrected to the satisfaction of the public official or their designee, the city may file an action to abate the property as a chronic nuisance property pursuant to this chapter and/or take other action against the property or person in charge.
3. The notice shall be served by first-class restricted delivery return receipt requested mail to the last known address of the landowner of the property, and either:
a. Posted in a prominent location on the premises in a conspicuous manner which is reasonably likely to be discovered; or
b. By personal service upon the landowner.
B. Requirement To Respond: A person in charge who is served notice pursuant to this section must, within ten (10) days, contact the officer who issued the notice to establish a plan of action to eliminate the conditions, behaviors or activities which constitute a nuisance at the property.
C. Abatement Agreement/Approved Plan To Abate:
1. The person in charge shall enter into an abatement agreement or otherwise produce a plan approved by the public official or their designee to abate the nuisance within fifteen (15) days of the issuance of the chronic nuisance notice.
2. The abatement agreement, or approved plan to abate, shall be signed by the person in charge and shall include the following:
a. The name and address of the persons in charge of the property;
b. The street address or a description sufficient for identification of the property, building, structure, or land upon or within which the nuisance is occurring;
c. A description of the nuisance activities and whether the property is abandoned; and
d. The necessary corrective action to be taken, and a specific date or time by which correction must be completed.
D. Corrective Action: Once the person in charge has entered into an abatement agreement or otherwise produced an approved plan to abate the nuisance, he or she must abide by the approved plan and promptly take corrective action to eliminate the nuisance. Corrective action may include, but is not limited to:
1. Effective tenant screening, leasing and rule enforcement;
2. Implementing physical improvements for crime prevention such as removal of sight obscuring trees, grass, bushes, blackberries and scotch broom where such removal is otherwise permitted by law;
3. Providing security for the property;
4. Evicting persons responsible for the nuisance activity; and
5. Pursuing other remedies available to the owner pursuant to any lease or other agreement.
E. The city may refer services to persons in charge with known mental or physical disabilities in order to facilitate such persons taking all lawful and reasonable corrective action necessary to abate the nuisance.
All corrective action must conform to state and local laws including, but not limited to, development regulations and RCW 59.18.580, the Victim Protection Limitation on Landlord’s Rental Decisions. (Ord. 985, 1-27-2020)
5-5-5 COMMENCEMENT OF ABATEMENT ACTION; CHRONIC NUISANCE; ENFORCEMENT:
A. The matter may be referred to the prosecuting attorney for review and a determination of whether to initiate legal action.
B. In any action filed, the city shall have the burden of showing by a preponderance of the evidence that the property is a chronic nuisance property. Police reports, official city reports, and affidavits may be offered as evidence of chronic nuisance. The failure to prosecute an individual, or the fact no one has been convicted of a crime, is not a defense to a chronic nuisance action.
C. If the court determines the property to be a chronic nuisance under this chapter, the court may:
1. Impose a warrant of abatement ordering the complainant to take all necessary steps to abate, deter and prevent the resumption of such nuisance which may include, but is not limited to, the immediate:
a. Vacation of the premises;
b. Closure and securing of the premises;
c. Removal of litter, rubbish and junk vehicles from the premises;
d. Safety inspection by code enforcement, building official, fire marshal, or any other government agency;
e. Removal of personal property subject to seizure and forfeiture pursuant to RCW 69.50.505 or 10.105.010;
2. Impose the costs and expenses of abating, or attempting to abate, the nuisance on the property and/or the person in charge;
3. Impose a fine, civil penalty or award damages;
4. Order the property into receivership in accordance with chapter 7.60 RCW, providing the receiver with plenary power to abate, deter and prevent the resumption of such nuisance, and to recover from the property the reasonable, necessary expenses of abating the nuisance and returning the property to productive use;
5. Order the person in charge to pay relocation assistance to any tenant who must relocate because of the order of abatement, and who the court finds not to have caused or participated in nuisance activities at the property;
6. Impose temporary and permanent injunctive relief; and
7. Any other further relief deemed appropriate by the court.
D. In assessing the penalties and remedies, the court may consider the following factors:
1. The actions taken by the person in charge to mitigate or correct the nuisance activity;
2. The financial condition of the person in charge;
3. Any known mental or physical disabilities of the person in charge;
4. The repeated or continuous nature of the nuisance activity;
5. The statements of the neighbors or those affected by the nuisance activity; and
6. Any other factor deemed relevant by the court.
E. Any fine, civil penalty, cost and/or expense awarded to the city may be filed with the assessor-treasurer who shall cause the same to be filed as a lien on the property. Expenses shall be submitted to the court for review and may be collected on execution.
F. The city shall file a formal lis pendens notice when an action for abatement is filed in the court.
G. The court shall retain jurisdiction during any period of closure or abatement of the property.
H. The court shall have jurisdiction of all criminal citations or civil infractions issued pursuant to this chapter.
I. The provisions of this chapter are in addition to and not in lieu of any other penalty, sanction, or right of action provided by law. (Ord. 985, 1-27-2020)
5-5-6 CIVIL PENALTIES; CHRONIC NUISANCE:
A. It is a civil infraction for any person in charge to fail to respond to the public official or their designee within ten (10) days of service of the chronic nuisance notice. Civil infraction as defined in section 1-4-1(A)(2).
B. It is a civil infraction for any person in charge to fail to enter into an abatement agreement or otherwise produce an approved plan to abate the nuisance within fifteen (15) days of the issuance of the chronic nuisance notice. Civil infraction as defined in section 1-4-1(A)(2).
C. After the issuance of the chronic nuisance notice, and after the time to enter into an abatement agreement or otherwise produce an approved plan has passed, every subsequent nuisance activity shall be constituted as a separate offense.
D. The penalties and remedies of this chapter are not exclusive and do not affect any other enforcement actions taken by the city under this chapter or any other section of the city of Roy code or law or enforcement actions taken by a different jurisdiction. (Ord. 985, 1-27-2020)
5-5-7 CRIMINAL PENALTIES:
It shall be a misdemeanor, punishable as prescribed in section 1-4-1, for any person in charge to knowingly create or maintain nuisance activity on property in his or her actual or constructive possession or control or to knowingly omit or refuse to perform any legal duty relating to the abatement or removal of a nuisance activity. Each calendar day that nuisance activity remains unlawfully upon property shall constitute a separate offense; provided, however, that criminal conduct of third parties shall not constitute a violation of this section. (Ord. 985, 1-27-2020)
5-5-8 COST RECOVERY:
A. In addition to the other remedies available under this chapter, a public official may charge the costs of abatement to the person(s) in charge who were served the chronic nuisance notice or to the persons(s) who were found personally liable for the costs of abating the nuisance by an order issued by court.
B. If more than one (1) person in charge has been issued a chronic nuisance notice or more than one (1) person was found personally liable for the costs of abating the nuisance by an order issued by the superior court, each party shall be jointly and severally liable for the costs of the abatement.
C. For purposes of this section, "costs" shall include, but are not limited to:
1. Personnel costs, both direct and indirect, including all attorney’s fees and costs incurred in the investigation, documentation, and abatement of the chronic nuisance;
2. Repair, demolition, hauling, cleanup, storage, disposal, and environmental mitigation expenses;
3. Actual expenses and costs of the city in preparing notices, specifications, and contracts, and the costs of any required printing or mailing; and
4. Actual expenses and costs of the city in accomplishing, contracting, or inspecting the abatement work.
B. Any salvage value proceeds resulting from the abatement of the property shall first be applied to the costs of abatement. Any remaining such monies shall be paid to the landowner as shown on the last equalized assessment roll.
C. The city may also impose a special assessment for the costs of any abatement proceedings under this chapter and all other related costs against the real property on which the nuisance was found or any of the work of abatement was performed. (Ord. 985, 1-27-2020)
5-5-9 SPECIAL ASSESSMENT:
Pursuant to RCW 36.32.120(10), all costs incurred by the city of Roy for the abatement of any nuisance defined by any statute or ordinance shall be a special assessment upon land or premises on which the nuisance is situated and this assessment shall constitute a lien against the property which shall be of equal rank with state, city, and municipal taxes. (Ord. 985, 1-27-2020)
5-5-10 ENTRY:
Using any lawful means, the public official may enter upon the subject property and may remove or correct the condition that is subject to abatement. The public official may seek such judicial process as he or she deems necessary to effect the abatement. (Ord. 985, 1-27-2020)
5-5-11 SUMMARY CLOSURE:
Nothing in this chapter prohibits the city from taking any emergency action for the summary closure of such property when it is necessary to avoid an immediate threat to public welfare and safety. The city may take summary action to close the property without complying with the notification provisions of section 5-5-4, but shall provide such notice as is reasonable under the circumstances. (Ord. 985, 1-27-2020)
5-5-12 APPEALS:
A. Within fourteen (14) calendar days after issuance of a written notice or decision under this chapter, the landowner may submit a written notice of appeal, along with the required appeal fee, with the city of Roy.
B. The appeal shall be heard by the city of Roy hearing examiner. (Ord. 985, 1-27-2020)
5-5-13 SEVERABILITY:
If any provision of this chapter or its application to any person or property is held invalid, the remainder of this chapter or the application of the provision to other persons or property is not affected. (Ord. 985, 1-27-2020)